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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill amends the Criminal Code Act 1995 to establish a scheme
for the continuing detention of high risk terrorist offenders at the conclusion
of their custodial sentence
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Portfolio
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Attorney-General
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Introduced
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Senate on 15 September 2016
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Bill status
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Received Royal Assent on 7 December 2016
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Scrutiny principle
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Standing Order 24(1)(a)(i) and (ii)
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2.62 The committee dealt with this bill in Alert Digest No. 7 of 2016. The
Attorney-General responded to the committee's comments in a letter dated 27 November 2016. The committee sought further information in the Tenth Report of 2016 and the Attorney-General responded in a letter dated 16 February 2017.
2.63 Set out below are extracts from the committee's initial scrutiny of the bill and the Attorney-General's responses followed by the committee's comments on the response. A copy of the letter is at Appendix 1.
2.64 Proposed subsection 105A.4(1) provides that a terrorist offender that is subject to a continuing detention order must be treated in a way appropriate to their status as a person who is not serving a sentence of imprisonment. However, paragraphs (a) to (c) of that subsection provide for exceptions to that principle. In particular, the principle may be subverted on the basis of ‘reasonable requirements necessary to maintain’:
• the management, security or good order of the prison;
• the safe custody or welfare of the offender or any prisoners; and
• the safety and protection of the community.
2.65 Proposed subsection 105A.4(2) provides that the offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment. This general principle is subject to similar exceptions as in the case of proposed subsection 105A.4(1), along with further exceptions relating to rehabilitation, treatment, work, education, general socialisation or other group activity or where an offender elects to be accommodated or detained with the general prison population.
2.66 If the purpose of continuing detention orders is preventative rather than punitive, it is unclear why the general principles articulated in subsections 105A.4(1) and (2) should be subject to all of the broad exceptions provided for in the bill, particularly those potentially based on reasons of efficiency. It is suggested that it is not possible to interpret the overall scheme as non-punitive unless the detention regime is kept entirely separate and where appropriate modifications to the normal conditions of incarceration for convicted offenders are made. If prison conditions remain the same the punitive/protective distinction appears to be rendered meaningless in its application. These exceptions exacerbate the general scrutiny concerns identified above. It must be emphasised, however, that removing these exceptions would not ameliorate those general concerns.
2.67 In addition some of the exceptions in proposed section 105A.4 are very broad. In particular, the ambit of reasonable requirements necessary to maintain the ‘management, security and good order’ of the prison is unclear.
2.68 The committee considers that these provisions allowing for a terrorist offender to ultimately be treated and detained in the same manner and in the same area as persons serving prison sentences appear to undermine the stated non-punitive nature of the scheme. The committee seeks the Attorney-General’s advice as to what are the likely conditions of detention for a terrorist offender in a prison under a continuing detention order and what is the justification for having such broad exceptions to the general principle that the person must be treated in a way that is appropriate to their status as a person who is not serving a sentence of imprisonment.
Attorney-General's first response
2.69 The Attorney-General advised:
The Committee has sought advice about the likely conditions of detention for a terrorist offender in a prison under a continuing detention order and the justification for having exceptions to the general principle that the person must be treated in a way that is appropriate to their status as a person who is not serving a sentence of imprisonment.
Subsections 105A.4(1) and (2) have been drafted to make it clear that the default position is for offenders under a continuing detention order to be treated and accommodated differently to those offenders who are serving a sentence of imprisonment. However, the provisions also recognise that there may be limited situations where this is either not reasonable given the risk the offender may present to the community or other offenders, or in the best interest of the offender.
For example, one exception is when the offender elects to be accommodated or detained in an area or unit of the prison with other offenders who are serving sentences of imprisonment. This promotes the rights of the offender by providing them with greater opportunity to participate in decisions relevant to their accommodation. Other exceptions are focused on promoting the offender’s wellbeing, such as through participation in group activities, rehabilitation or education programs. In relation to the exceptions relevant to ensuring the security or good order of the prison, or the safety and protection of the community, there would need to be reasonable grounds to justify the use of these exceptions.
Accordingly, the conditions the offender under the continuing detention order will be subject to will vary, depending upon the particular circumstances of the case. My Department has convened an Implementation Working Group with legal, corrections and law enforcement representatives from each jurisdiction to progress all outstanding issues relating to implementation of the proposed post sentence preventative detention scheme, including the housing of offenders under the regime. In particular, the Working Group will consider developing ‘Management Standards’ that would provide a minimum standard all correction authorities should meet, ensuring that conditions in correction facilitates are appropriate and proportionate.
Committee's first comment
2.70 The committee thanks the Attorney-General for this response.
2.71 The committee notes the Attorney-General’s advice that the default position is that offenders under a continuing detention order (CDO) will be treated and accommodated differently to those serving a sentence of imprisonment but that there may be ‘limited situations’ where this is not reasonable or in the best interests of the offender. The committee also notes the Attorney General’s advice that there would need to be reasonable grounds to justify the use of the exceptions based on the security or good order of the prison or the safety or protection of the community. The committee also notes the advice that consideration will be given to developing ‘Management Standards’ that provide a minimum standard that all correction authorities should meet.
2.72 Despite the Attorney-General’s advice that there are ‘limited’ situations where it may not be reasonable to treat or accommodate an offender subject to a CDO in a way that is appropriate to their status as a person not serving a term of imprisonment, the committee considers that the provisions, as drafted, allow for a broad exception to this general principle. In particular, the committee considers that paragraph 105A.4(1)(a), which provides an exception in relation to reasonable requirements necessary to maintain the ‘management, security or good order of the prison’ is overly broad. While the committee agrees that there is a requirement that the exception be a ‘reasonable requirement’, because the phrase ‘management, security or good order of the prison’ is so broad and ultimately the view of prison officials, it would be difficult to challenge a decision to this effect. For example, as the provision is drafted, it is conceivable that prison authorities may decide to treat a person subject to a CDO in the same way as those serving sentences of imprisonment, because to do otherwise may cause resentment amongst other prisoners and affect the good order of the prison.
2.73 The committee’s scrutiny concerns also apply in relation to proposed paragraph 105A.4(2)(b) which provides that an offender must not be accommodated or detained in the same area of the prison as those serving terms of imprisonment unless ‘it is necessary for the security or good order of the prison’. In this instance, the committee notes that the requirement is that it is ‘necessary’ for the security or good order of the prison and not that it is ‘reasonably necessary’. This appears to impose a subjective approach to where the person is to be accommodated, based on what prison authorities consider necessary for the good order of the prison.
2.74 It is also not clear, based on the Attorney-General’s response, as to what are the likely conditions of detention for a terrorist offender in a prison under a CDO. The committee welcomes the development of ‘Management Standards’ that would provide a minimum standard all correction authorities should meet. However, the committee notes that such standards are not required by the legislation and they would not be subject to parliamentary scrutiny. Furthermore, without these standards being included in the primary legislation it is not possible to evaluate the extent to which they may address the scrutiny concerns identified by the committee.
2.75 The committee therefore seeks the Attorney-General’s further advice as to:
• whether it is possible to include these standards in the primary legislation; and
• if this approach is rejected, whether the bill could be amended to require the making of such standards by a legislative instrument, which would be subject to parliamentary scrutiny and the disallowance process.
2.76 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.77 The committee draws its scrutiny concerns to the attention of Senators and leaves the appropriateness of the exceptions to treating an offender subject to a CDO differently to those serving terms of imprisonment to the consideration of the Senate as a whole.
Attorney-General's further response
2.78 The Attorney-General advised
The Committee has sought further advice about the likely conditions of detention for a terrorist offender in a prison under a continuing detention order. More specifically it has requested further information about the development of 'Management Standards', and the possibility of including such standards in the primary legislation; or if this is not possible, by making them a legislative instrument, which would be subject to parliamentary scrutiny and the disallowance process. The Committee has also requested that the key inf01mation from this advice be included in the Explanatory Memorandum.
Subsections 105A.4(1) and (2) were drafted to make it clear that the default position is for offenders under a continuing detention order to be treated and accommodated differently to those offenders who are serving a sentence of imprisonment, subject to certain exceptions.
The High Risk Terrorist Offender Implementation Working Group, comprised of legal, corrections and law enforcement representatives from each jurisdiction was convened to progress outstanding issues relating to the post-sentence preventative detention scheme. It has prioritised the consideration of housing these offenders and the development of management standards. Management standards provide a minimum standard all correction authorities should meet, ensuring that conditions in correction facilitates are appropriate and proportionate. Similar national uniform guidelines have been developed between jurisdictions, for example the Standard Guidelines for Corrections in Australia.
It is not my intention to include any management standards in the primary legislation or in a legislative instrument. Additional information about management standards for the treatment and housing of terrorist offenders subject to the continuing detention order regime is provided in the High Risk Terrorist Offenders Implementation Plan 2016.
The PJCIS completed its inquiry and report on the Bill on 4 November 2016. The Government accepted the PJCIS recommendation to provide it with a clear development and implementation plan that includes timeframes to assist detailed consideration of the Bill prior to the second reading debate in the Senate (PJCIS Recommendation 22). The Implementation Plan was provided to the PJCIS on 25 November 2016 and is available at <http://www.aph.gov.au/Parliamentary _Business/Committees/Joint/Intelligence_and_Security/HRTOBill/Implementation_Plan> >.
The Government also accepted the PJCIS Recommendation 23 to provide the Committee with a timetable for implementation of any outstanding matters being considered by the Implementation Working Group by 30 June 2017. The report will include information about conditions of detention, including any agreements reached with States and Territories on housing arrangements.
Committee's further comment
2.79 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that it is not the intention to include any management standards in the primary legislation or in a legislative instrument.
2.80 The committee considers it would have been appropriate if the proposed Management Standards were subject to parliamentary scrutiny, however, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.
Initial scrutiny – extract
2.81 Proposed section 105A.8 sets out mandatory relevant considerations which the court must consider in determining whether to make a continuing detention order. The explanatory material merely repeats the listed considerations without explaining their relevance given the purpose of the legislation and the legal tests to be applied. For example, it is not clear from the explanatory material accompanying the bill why the general criminal history of an offender is relevant given the purposes of the legislation. Nor is it clear how ‘any other information as to risk of the offender committing a serious Part 5.3 offence’ is to be understood.
2.82 The committee requests a detailed justification from the Attorney-General for the basis for the relevance of these matters and more specificity about the type of information and factors which should legitimately form part of the decision-making process.
Attorney-General's first response
2.83 The Attorney-General advised:
The Committee has sought a detailed justification for the basis for the relevance of the matters set out in section 105A.8 and more specificity about the type of information and factors which should legitimately form part of the decision-making process.
Section 105A.8 provides a list of matters the Court must consider when determining whether to make a continuing detention order. These matters have been largely modelled on similar requirements in State and Territory post-sentence detention schemes. It is a matter for the Court as to the weight it places on each of these matters when considering whether to make a continuing detention order.
Proposed section 105A.8 assists the Court by outlining matters which are directly relevant to an assessment of the offender’s risk to the community. For example, in determining whether to make an order, the Court is required to consider the safety and protection of the community, any expert reports relevant to the offender’s risk, and any treatment or rehabilitation programs in which the offender has participated and the level of the offender’s participation in those programs. These matters are relevant to the offender’s risk to the community.
The Committee asked, in particular, about the requirement under paragraph 105A.8(g) for the Court to have regard to the offender’s general criminal history. I propose to move Government amendments in the Senate that will appropriately confine this requirement so that the Court will only have to have regard to the offender’s prior convictions for any offences that fall within the categories listed in paragraph 105A.3(1)(a).
The Committee also asked how paragraph 105A.8(i) should be understood. Paragraph 105A.8(i) requires the Court to consider any other information as to the risk of the offender committing a serious Part 5.3 offence. This enables the Court to consider matters that are not captured by the other paragraphs in the section, but are relevant to the risk of the offender committing a serious Part 5.3 offence. For example, this could include admissible evidence from police or other agencies, that will assist the Court in considering the risk of the offender committing a serious Part 5.3 offence. Section 105A.8 is designed to provide the Court with an appropriate degree of flexibility. Importantly, the rules of evidence and procedure for civil matters apply when the Court has regard to the matters in section 105A.8 (see section 105A.13).
Committee's first comment
2.84 The committee thanks the Attorney-General for this response.
2.85 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.86 In light of the information provided, the committee leaves the appropriateness of the relevant mandatory considerations the court must have regard to in making a continuing detention order to the consideration of the Senate as a whole.
Attorney-General's further response
2.87 The Attorney-General advised
The Committee noted my intention to move Government amendments to confine the Court's consideration of the offender's criminal history to prior convictions for relevant terrorist offences (and not their criminal history more broadly), and requested that the key information from my advice of27 November 2016 be included in the Explanatory Memorandum.
On 1 December 2016 I moved Government amendments 24, 25 and 26 which amended Schedule 1, item 1, subsection 105A.8(1) to confine the Court's consideration of the offender's criminal history to prior convictions for relevant terrorist offences listed in paragraph 105A.3(1)(a). Paragraph 168 of the Revised Explanatory Memorandum reflects this amendment.
I agree with the Committee on the importance of the extrinsic material as a point of access to understanding the law, and I note that paragraphs 168-170 of the Revised Explanatory Memorandum were updated to include key information about the Government amendments relating to section I05A.8.
Committee's further comment
2.88 The committee thanks the Attorney-General for this response.
2.89 The committee welcomes the Attorney-General's advice that amendments were made to the bill in relation to certain mandatory considerations the court must have regard to, and that the explanatory memorandum was updated accordingly.
2.90 In light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.
[19] Item 1, proposed subsections 105A.4(1) and (2).
[20] Proposed section 105A.8.
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